1-99-1678 FIRST DIVISION

February 20, 2001

 

In re T.J., K.J. and I.J., Minors							)	Appeal from the
							)	Circuit Court of
							)	Cook County,
	Minor-Respondents-Appellees						)	Juvenile Division
							)
(The People of The State of							)
Illinois,							)
							)	93 J 1182
	Petitioner-Appellee						)	93 J 1183
							)	93 J 1184
)
					)
							)
Wanda Cooper,							)	The Honorable
							)	Donna J. Cervini,
	Respondent-Appellant).						)	Judge Presiding.

JUSTICE COHEN delivered the opinion of the court:

The State petitioned the circuit court to find therespondent an unfit parent, terminate her parental rights andappoint a guardian with the power to consent to adoption of herthree minor children.

The State moved for a summary determination as to therespondent's unfitness on the grounds that she was unable todischarge parental responsibilities due to mental illness. Thejuvenile court judge granted the State's motion and, after a bestinterests hearing, the judge terminated the respondent's parentalrights and appointed a guardian.

The respondent now appeals the summary finding of unfitness.

BACKGROUND

This case concerns three children of Wanda Cooper: I.J.,born September 23, 1990; K.J., born November 25, 1989; and T.J.,born December 26, 1988. The biological father of I.J., K.J. andT.J. is Ms. Cooper's previous husband, DeAngelo. Ms. Cooper isnow married to David Cooper and has lived with him for severalyears. Mr. Cooper's two daughters also live with the Cooperfamily.

In 1993, the State filed petitions for adjudication ofwardship and motions for temporary custody of I.J., K.J. andT.J.. The petitions alleged that I.J. had been physically abusedand that K.J. and T.J. were at substantial risk of physicalinjury. The children were taken into protective custody on March18, 1993, after I.J. was found with a black eye. After a hearingon April 6, 1993, the Illinois Department of Children and FamilyServices (DCFS) was awarded temporary custody.

DCFS compiled a client service plan with Ms. Cooper. Theplan indicated that Ms. Cooper had been diagnosed with a mentalillness that required professional treatment. DCFS referred Ms.Cooper for psychological evaluation and treatment at anoutpatient clinic.

On September 22, 1994, the children were found to be abusedpursuant to the petitions for adjudication of wardship. OnFebruary 28, 1995, Dr. Arthur Price, the psychiatrist to whom Ms.Cooper had been referred, submitted his evaluation to the court. The court entered disposition orders whereby Ms. Cooper lostcustody of the children. The court then entered an order thatMs. Cooper submit to a forensic clinical services psychiatricevaluation. The psychiatrist who conducted the evaluation wasDr. James Corcoran.

On February 8, 1996, the juvenile court ordered Ms. Cooperto be referred for an assessment by the parental assessment teamat the University of Illinois at Chicago Hospital. On March 20,1996, the court entered an order changing the permanency goal forthe children from long-term foster care to adoption. On August6, 1997, the parental assessment team filed its report. A weeklater the State filed a petition for appointment of a guardianwith right to consent to adoption. The petition alleged that Ms.Cooper was an unfit parent under, inter alia, section 1(D)(p) ofthe Adoption Act (750 ILCS 50/1(D)(p) (West 1998)). This sectionof the Adoption Act classifies a parent as unfit if there is afinding of an "[i]nability to discharge parental responsibilitiessupported by competent evidence from a psychiatrist, licensedclinical social worker, or clinical psychologist of *** mentalillness *** and there is sufficient justification to believe thatthe inability to discharge parental responsibilities shall extendbeyond a reasonable time period." 750 ILCS 50/1(D)(p) (West1998).

On November 5, 1998, the State filed a motion for summaryjudgment on the issue of whether Ms. Cooper was unfit due tomental illness. Attached to the motion were the parentalassessment team report and an update. Attached to Ms. Cooper'sresponse were an affidavit from her husband and the forensicclinical services evaluation by Dr. Corcoran.

The parental assessment team report had three parts: anevaluation of Ms. Cooper by a psychiatrist, a report on both theparents and the children by child psychologists and a report onthe home environment by a child development specialist. Thequestions that DCFS presented to the parenting assessment teamwere as follows:

"1. [Ms. Cooper] appears to have been compliantwith all services. How much has she been able tointernalize?

2. Considering [K.J.]'s special needs, howeffective would Ms. Cooper be at disciplining andsetting limits?

3. Ms. Cooper often avoids interacting with[I.J.]. What kind of a bond do Ms. Cooper and [I.J.]have?

4. How reliable and stable is Ms. Cooper's supportsystem?"

The examination by Dr. Miller took place on June 16, 1997. Ms. Cooper behaved normally during the interview.

"Ms. Cooper was about ten minutes late for herinterview. She was well groomed and dressedappropriately for the weather. She made direct eyecontact. She understood the purpose of the interviewand was cooperative. She was consistently attentive,and was not distracted by considerable constructionnoise nearby. Her speech was of normal rate andvolume. Her motor activity was of normal rate, with noabnormal movements. Her affect was full range andcongruent with content. Her mood was mostly euthymic,although she became sad and slightly tearful whendiscussing the loss of her children. Her thoughtprocesses were tangential, but with no frank looseassociations, current hallucinations, current suicidalor homicidal ideation."

In the interview, Ms. Cooper admitted to Dr. Miller that shesuffered from depression. She told Dr. Miller that she had beendiagnosed with schizophrenia, but she said she did not recognizeany of the symptoms in herself. She had been treated with anantipsychotic drug and weekly group therapy. Ms. Cooper said theonly effect the medication had was to cause her to gain 100pounds.

She said that DCFS sent her to another psychiatrist who saidshe suffered from mild depression and prescribed anantidepressant, which Ms. Cooper said did no good. (Recordsactually showed that the psychiatrist had diagnosed her withschizophrenia and the medication was an antipsychotic.) Whentherapy began to interfere with her work schedule she stoppedattending and stopped taking the medication. She denied havingexperienced hallucinations, although in fact she had previouslyreported visual and auditory hallucinations, as well as ideas ofreference (e.g., messages on the television directed specificallyat her).

Ms. Cooper had a documented hospitalization for a suicideattempt. She explained this by saying that a roommate stole hermedical card and used it after the roommate, not Ms. Cooper,attempted suicide. However, Ms. Cooper had told a prior examinerthat she had once attempted suicide by stabbing her wrist andoverdosing on tranquilizers.

Ms. Cooper had told previous examiners that she hadrepeatedly been sexually abused by one or more of her uncles as achild and raped as a teenager. However, she described to Dr.Miller a happy childhood with no major traumas. She did not tellDr. Miller about physical abuse she suffered at the hands of thechildren's natural father, although she had spoken of this toothers.

Dr. Miller reported that Ms. Cooper had a normal full scaleIQ. She scored below average on scales designed to measuresocial convention, morality and understanding of socialinteractions, but had a superior score in alertness to herphysical environment. Dr. Miller explained that "this pattern ischaracteristic of people who have a high degree of paranoia."

Ms. Cooper told Dr. Miller that I.J. got his black eye whensomeone at the shelter where they were living threw something ather but missed and hit I.J. She had told others that she did notknow how he got the black eye or that someone else had hit him. In each place she lived, she said, someone else had hit herchildren.

Dr. Miller's opinion was that Ms. Cooper was "highlydisturbed." Examiners had had difficulty diagnosing the specificdisorder, in part due to Ms. Cooper's lack of candor. Ms.Cooper's misrepresentations did not seem to be the product ofdelusions, since they were not fixed. They also did not seem topart of a deliberate plan to regain custody of her children byfooling the examiners, because the misrepresentations were quitetransparent and often involved tangential matters. Rather, theconflicting stories seemed to come from "a primitive cognitivestyle of someone who has herself been subject to a chaoticenvironment and severely traumatized." Dr. Miller gave aprovisional diagnosis of schizophrenia, paranoid type. She notedthat, despite what Ms. Cooper had said, the records indicatedthat there had been improvement with the antipsychoticmedications. However, medication could not have a major impacton Ms. Cooper's interpersonal problems, particularly in light ofher denial that she was ill.

As her support system, Ms. Cooper gave her husband and fourfriends (only two of whose names she could remember). Shedescribed her husband as supportive and said they now had a home. A background check on Mr. Cooper revealed that in the previous 10years he had been charged with robbery, battery, domestic batteryand criminal damage to property.

Dr. Miller concluded that Ms. Cooper's

"tendencies to grossly misrepresent facts, to deny pastand current problems, and to externalize blame placeher at very high risk of repeating past abusive andneglectful behavior. Her extreme denial of illness,and resultant lack of treatment for her illness, haveled to her being vulnerable to ongoing psychoticsymptoms, which in turn increase her risk of abuse andneglect. Her symptoms would be likely to worsen withthe stress of parenting. If treatment (e.g. medicationand psychosocial rehabilitation) were mandated, shewould probably show some improvement (less thoughtdisorder, more organized behavior), but the prognosisfor her internalizing the need for treatment long termis poor, at least within the time frame she hasavailable for parenting her children."

The second part of the report was a "parenting competencyevaluation" based on interviews with Mr. and Ms. Cooper and thechildren by child psychologists. The examiners concluded thatall three children had special needs. T.J. demonstrated symptomsof depression and anxiety. K.J. was described as "highlydisturbed," with marked difficulties in regulating his emotionsduring a brief separation from his mother. His behavior wasconsistent with an earlier diagnosis of reactive attachmentdisorder. I.J. showed signs of restlessness and difficulties inconcentrating. He appeared guarded and avoidant with respect toMs. Cooper. All three had delayed receptive language skills. The examiners faulted Ms. Cooper for failing to recognize thespecial needs of the children and minimizing any problems. This,they predicted, would make it difficult for her to become abetter parent.

Mr. Cooper had a more balanced and realistic view of thechildren than his wife did, although he also tended to minimizedifficulties. He did not idealize his own childhood. Wheninteracting with K.J., however, he was not good at setting limitsand went along with whatever K.J. did.

The Coopers were given questionnaires on parenting. Theygave certain answers demonstrating "worrisome attitudes aboutchildrearing" concerning, inter alia, toilet training and howlong a two year old could be left alone.

Ms. Cooper said that she is a nice parent who does not hither children. When they misbehave, she said, she explains tothem what they have done wrong and has them stand in the corner. Mr. Cooper said he does not hit the children and never has. Hetries to discipline the children through "voice control" andtaking things away from them. Both emphasized their interest inthe children's well-being. They described a large supportnetwork, which, the evaluators conceded, could be a strength ifit was viable.

The third part of the report was a child developmentspecialist evaluation. Kathleen Pesek, the specialist, observedMs. Cooper's interactions with the children in the home. According to Ms. Pesek, Ms. Coopers's interactions with herchildren were worrisome and showed that the attachment betweenher and her children was insecure. Ms. Cooper hardly interactedwith I.J. during the visit, and her interactions with the otherchildren were "superficial." Ms. Pesek also was concerned by Ms.Cooper's tendency to externalize blame, minimize difficulties anddeny her mental illness.

The follow-up report by the parenting assessment teamconcluded that little had changed. It noted that Ms. Cooper hadnot sought psychiatric help. She still denied her mentalillness. She did not engage in a parenting skills trainingsuggested by her DCFS worker. Ms. Cooper told other evaluatorsshe had completed a parenting skills class and did not need moretraining. She knew that the DCFS permanency goal was fortermination of her parental rights and placing her children foradoption. She said this was because of social workers who wouldnot tell her what she needed to do to regain custody of herchildren.

Accompanying the response to the motion for summary judgmentwere the report from Dr. Corcoran and an affidavit from Mr.Cooper. In his report, Dr. Corcoran noted that Ms. Cooper'saffect was blunted and she lacked energy. Her thought processeswere mainly linear but somewhat disorganized. She was perplexedthat people kept saying she was schizophrenic. She denied anyauditory or visual hallucinations. However, she claimed to havea "sixth sense" that enabled her to predict negative events thatwould happen to people around her. Her thought processes weredevoid of homicidal or suicidal ideation or intent.

She told Dr. Corcoran about having been sexually abused byher uncles and raped as a teenager. She related how K.J. hadoriginally been one of a pair of twins but that her ex-husbandhad stabbed her in the abdomen, killing the other twin. Her ex-husband also tried to strangle her once on an El platform. Shedenied having abused her children and denied previous psychiatrichospitalization. She said she lived with her husband and his twodaughters in a two-bedroom apartment and that her currentmarriage was great.

Dr. Corcoran reported that Ms. Cooper exhibited "signs andsymptoms of a history of major depression with psychoticfeatures, as well as Schizotypal Personality Disorder." Heopined that the psychotropic medication she was taking "allowsher to better organize her thinking, allows her to calm herinternal anxiety and social anxiety around others, and alsoallows for better overall functioning." Dr. Corcoran's reportconcluded:

"Given the characterologic traits and symptoms thatwere mentioned, it appears that [Ms. Cooper] exhibitsonly a marginal capacity to parent young children. Heremotional detachment from her children, as indicated inprevious reports, is to be expected given the nature ofher personality disorder and her inability to formclose relationships with others. She does not,however, exhibit any tendency to become violent orneglectful with her children which could be elicited oninterview. A psychiatric assessment of her currenthusband is necessary to assess the overall capacity ofboth parents to parent emotionally handicapped childreneffectively."

In his affidavit, Mr. Cooper said he had been living withMs. Cooper for six years and his children had been living withthem for nine months. He said that as long as he had known hiswife she had behaved appropriately in interactions with hischildren and other children. He went on to state that during theperiod he had known her, she had "never demonstrated any symptomsof mental illness, mental impairment or mental retardation," thatshe had "been able and competent to parent children," that he hadnever known her to "misinterpret facts, to deny past problems, todeny current problems, to minimize problems, or to externalizeblame" and that he had never known her "to fail to recognize orto fail to understand the needs of her children."

The court granted summary judgment based on the precedingevidence. Then a best interests hearing was held, after whichthe court granted the petition to terminate parental rights andappoint a guardian with power to consent to adoption. Thisappeal followed.

ANALYSIS

Summary judgment may be granted when there are no genuineissues of material fact and the moving party is entitled tojudgment as a matter of law. Telenois, Inc. v. Village ofSchaumburg, 256 Ill. App. 3d 897, 901, 628 N.E.2d 581, 584(1993). Summary judgment should not be granted if reasonablepersons could draw divergent inferences from the undisputedfacts. Telenois, 256 Ill. App. 3d at 901, 628 N.E.2d at 584. Inmaking its ruling, the trial court should examine the pleadings,depositions, exhibits and affidavits of record, construing theevidence in the light most favorable to the nonmoving party. Wogelius v. Dallas, 152 Ill. App. 3d 614, 619, 504 N.E.2d 791,794 (1987). Summary judgment is a drastic means of disposing oflitigation and should be used only if the right of the movant torelief is clear and free of doubt. Bier v. Leanna LakesideProperty Ass'n, 305 Ill. App. 3d 45, 50, 711 N.E.2d 773, 777-78(1999). Our review of a summary judgment order is de novo. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606,614, 663 N.E.2d 1, 7 (1995).

In her response to the motion for summary judgment, Ms.Cooper raised a broad due process challenge to the use of summaryjudgment for termination of parental rights. In this appeal shealso mentions the due process clause as a possible basis forrelief. However, she has scaled back her argument, claiming onlythat termination of parental rights by summary judgment violatesdue process when the grounds are mental illness and when thereare disputed issues of material fact. Of course, as a matterpurely of state law, it is improper to grant summary judgment inany context when there are disputed issues of material fact.Telenois, 256 Ill. App. 3d at 901, 628 N.E.2d at 584. Accordingly, Ms. Cooper's constitutional argument is superfluous. Since the constitutional question is not necessary to thedisposition of the case, we will not address it. Aurora EastPublic School District No. 131 v. Cronin, 92 Ill. App. 3d 1010,1021, 415 N.E.2d 1372, 1381 (1981).

We now turn to the pleadings, exhibits and Mr. Cooper'saffidavit to determine if there is evidence in Ms. Cooper's favorthat could raise a genuine issue of material fact. Dr.Corcoran's report, like Dr. Miller's report, does indicate thatMs. Cooper has mental health issues, although his primarydiagnosis was depression rather than schizophrenia. He indicatedthat she had parenting ability even if it was "only marginal." Most importantly, he wrote that he could not elicit from Ms.Cooper in the interview any tendency to be violent or neglectfultoward her children.

The State argues that Mr. Cooper's affidavit should not beconsidered because it does not consist of expert testimony. According to the State, the Adoption Act requires that the courtonly consider "competent evidence from a psychiatrist, licensedclinical social worker, or clinical psychologist." We disagree. The Adoption Act provides that the State must establish by clearand convincing evidence the parent's inability to dischargeparental responsibilities due to mental illness, supported by"competent evidence from a psychiatrist, licensed clinical socialworker, or clinical psychologist." 750 ILCS 50/1(D)(p) (West1998). The Adoption Act does not restrict the type of evidencethat can be used to show that the parent does have the mentalcapacity to discharge parental responsibilities.

Next, the State contends that, apart from the Adoption Act,the affidavit was not proper as a matter of general evidence law. Affidavits submitted on summary judgment motions are substitutesfor testimony and are subject to the same requirements ascompetent testimony at trial. Wiszowaty v. Baumgard, 257 Ill.App. 3d 812, 819, 629 N.E.2d 624, 630 (1994). The State arguesthat Mr. Cooper is not qualified to give an opinion as to Ms.Cooper's sanity. Generally lay witnesses may not expressopinions with respect to areas of specialized knowledge beyondthat possessed by the average person. M. Graham, Cleary &Graham's Handbook of Illinois Evidence